by David M. Reutter

The Court of Appeal of California, Fourth Appellate District, issued a writ of mandate directing a trial court to grant a defendant’s request for mental health diversion. At issue was the application of Stats. 2018, ch. 1005, which recognizes that incarceration of certain persons with mental health issues “only serves to aggravate [their] preexisting conditions and does little to deter future lawlessness.”

The Court’s opinion is an interesting read, because at the core of its reasoning is an instance of a criminal court judge exercising “residual” discretion to redefine public safety in a manner inconsistent with the Legislature’s expressed intent. In 2018, the California Legislature enacted Pen. Code §1001.36 to create a pretrial diversion program for criminal defendants with diagnosed mental health disorders. It lists six criteria a defendant must meet. The first two are phrased as requiring the court to be “satisfied” that (1) the defendant suffers from a recognized mental disorder, and (2) the disorder was a “significant factor in the commission of the charged offense.”

Effective January 1, 2023, these first two requirements were recharacterized as “eligibility” criteria. More substantively, the defendants no longer needed to satisfy the trial court. Instead, defendants are generally eligible if they have been “diagnosed” with a recognized mental disorder. The amended statute directs a finding that a mental disorder was the casual connection for the crime “unless there is clear and convincing evidence that [the mental disorder] was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.” § 1001.36(b)(2).

The amended statute groups the four remaining criteria to assess the defendant’s “suitability” for diversion. The first criterion requires “the opinion of a qualified mental health expert,” that the symptoms of defendant’s mental disorder “would respond to mental health treatment.” The second and third requirements are satisfied if the defendant agrees to waive his or her speedy trial rights and to comply with treatment as a condition of diversion. Only the fourth requirement necessitates a trial court finding—that the defendant “will not pose an unreasonable risk of danger to public safety . . . if treated in the community.” § 1001.36(c)

Once a defendant is found eligible and suitable for diversion, the trial court must be satisfied “that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” § 1001.36(f)(1)(A)(i); see People v. Gerson (2022), 80 Cal.App.5th 1067 (2022). The Court explained that this is not an additional eligibility or suitability requirement; rather, it is an “ongoing assessment to assure that defendants will receive appropriate treatment for their particular conditions as part of the diversion program.”

While the trial court may still exercise “residual” discretion to deny diversion, “its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.” The amended statue “includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community,” the Court said.

Turning to the present case, following her arrest for attempted robbery, Jeanette Sarmiento underwent a psychological evaluation by Dr. Cynthia Boyd. Her report was submitted in support of Sarmiento’s request for mental health diversion. Boyd diagnosed Sarmiento as suffering from posttraumatic stress disorder from sexual abuse that started at a young age, major depressive disorder, and stimulant use disorder specific to meth-amphetamine. While Sarmiento received substance abuse treatment and relapsed, she never received treatment for the mental disorders.

The trial court denied diversion. It found Sarmiento’s “inability to remain drug-free after prior participation in [substance abuse] treatment” indicated “she would not respond well to mental health treatment,” which accordingly would not “meet [her] specialized mental health treatment needs.”

According to the National Institute on Drug Addiction, part of the National Institute of Health, drug addiction is a complex disease like many other chronic health conditions and progress is rarely linear. Significantly, “people in recovery from drug use disorders are at increased risk for returning to drug use even after years of not taking the drug. It’s common for a person to relapse, but relapse doesn’t mean that treatment doesn’t work.”

Boyd opined “Sarmiento was unable to maintain her sobriety because her underlying mental health conditions—the ones that drove her substance abuse as a means of self-medication—were never addressed.” The Court noted that “Boyd offered her conclusion that the symptoms of Sarmiento’s mental health disorders would respond to the proposed treatment plan; the People offered no contrary expert opinion.”

The Court said that it “cannot ignore that from the legislative perspective, a defendant like Sarmiento is the poster child for mental health diversion.” Thus, the Court concluded: “The trial court’s role was to determine whether a narrow range of factors warrant making this specific case an exception. None of the trail court’s specified reasons here justify the decision to deny Sarmiento mental health diversion. See: Sarmiento v. Superior Court, 98 Cal.App.5th 882 (2024).

Editor’s note: Anyone interested in the issue of mental health diversion under Pen. Code.§ 1001.36 is strongly encouraged to read the Court’s full opinion, which provides a thorough analysis of the statute.

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